Responsibility to Protect - An emerging norm or part of sovereignty?

Abstract: The main controversy in international law the past decades has been the approach to a non-international conflict exposing civilians to threats of genocide or mass atrocities. One corner stone of international law is the protection of a state and its internal affairs, the principle of non-intervention; another one is the protection of human rights. During the 1990s, the two principles were seen as conflicting. The non-intervention principle was widely considered to be ‘traditional’ sovereignty and as such overriding the protection of human rights. The genocides in Rwanda and Srebrenica, however, raised the need for action by the international community to protect not only states, but also people. The scholars struggled to find a bridge between the two seemingly opposing interests - protecting the state for a strong international order and protecting the people to save lives. The question was debated during the 1990s as humanitarian intervention, i.e. an intervention for humanitarian purposes, and after 2001 as the responsibility to protect. Responsibility to protect is based on the notion of a primary responsibility with each and every state to protect its population, and a secondary responsibility with the international community to assist a state, which is unwilling or unable to protect its people. The responsibility to protect was introduced as a novelty, in a post-Cold War context with strong focus on non-intervention. However, scholars are increasingly challenging the view of responsibility to protect as a novelty, instead seeing it as a part of sovereignty. The aim of this thesis is to clarify the legal framework relevant for sovereignty and the responsibility to protect, in order to assess if responsibility to protect is a novelty, i.e. an emerging norm or if it is part of existing sovereignty. An emerging norm expresses both a willingness to change, but also a possibility to dismiss change. If responsibility to protect is instead an existing part of sovereignty, the question is rather the one of implementation of the law. A responsibility included in sovereignty since centuries, is not negotiable. Firstly, one has to assess if there is state practice and opinio juris needed for an emerging norm; secondly, one has to define sovereignty in international law, and; thirdly one has to apply the legal terms jus cogens and erga omnes. As the human rights concerned are jus cogens, and as there seems to be opinio juris for international responsibility, erga omnes, there are strong indications that responsibility to protect is part of sovereignty. In conclusion, this thesis finds that responsibility to protect is part of sovereignty, as a duty of a state, corresponding to the right of non-intervention. If the reign fails to protect its people, or is itself abusing its people, the right of non-intervention becomes void. The law is clear on the matter, however, barely mentioned in the numerous reports, articles, speeches or books since the beginning of the 1990s. The world may not yet be ready for the full protection of human rights. Powerful national, economical and geopolitical interests, so called realpolitik, may still ensure that the law is not implemented.